Milling v Hardie

The appeal concerned a dispute between a father, Mr Milling, and his daughter and son-in-law, Mrs and Mr Hardie, regarding a homestead on the father's property. The Hardies had been invited by Mr Milling to live in the homestead and had undertaken improvements to the property with his consent. The central issue was whether Mr Milling's conduct gave rise to an estoppel by encouragement, creating a reasonable expectation in the Hardies that they were entitled to inherit the property or receive a transfer during Mr Milling's lifetime, or at least to occupy the relevant parts of the property. The Court of Appeal of New South Wales was required to determine the nature and extent of any proprietary interest arising from these circumstances.

The court considered whether the Hardies had obtained the full benefit of their improvements, effectively amortising their expenditure. The legal principles of proprietary estoppel were central to the determination, focusing on whether Mr Milling's conduct justified the expectation held by the Hardies. The court found that Mr Milling's conduct did indeed give rise to a reasonable expectation that the Hardies were entitled to occupy relevant parts of the property during his lifetime.

The Court of Appeal allowed the appeal in part. It varied the primary judge's orders by deleting the word "non-exclusive" from an order concerning occupation. It also set aside certain other orders relating to the extent of the Hardies' rights and the disposition of the property. The court also granted a certificate under the Suitors' Fund Act 1951 (NSW) to Mrs Hardie, if qualified, and directed the parties to file submissions regarding costs orders for both the first instance and appeal proceedings.